PRINTER'S NO. 887
No. 807 Session of 1989
INTRODUCED BY RHOADES, LINCOLN, STOUT, SHUMAKER, SHAFFER,
STAPLETON, SALVATORE, AFFLERBACH, O'PAKE, MUSTO, LEMMOND,
REGOLI, WILT, PORTERFIELD, HELFRICK AND CORMAN,
APRIL 10, 1989
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, APRIL 10, 1989
AN ACT
1 Amending the act of May 31, 1945 (P.L.1198, No.418), entitled,
2 as amended, "An act providing for the conservation and
3 improvement of land affected in connection with surface
4 mining; regulating such mining; providing for the
5 establishment of an Emergency Bond Fund for anthracite deep
6 mine operators; and providing penalties," adding definitions;
7 further providing for reclamation plans, permits and bonds;
8 providing for abatement of pollutional discharges; providing
9 for a remining and reclamation incentive program; further
10 providing for the Mining and Reclamation Advisory Board; and
11 making an editorial change.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Section 3 of the act of May 31, 1945 (P.L.1198,
15 No.418), known as the Surface Mining Conservation and
16 Reclamation Act, is amended by adding definitions to read:
17 Section 3. Definitions.--The following words and phrases,
18 unless a different meaning is plainly required by the context,
19 shall have the following meanings:
20 * * *
21 "Ephemeral stream" shall mean water conveyance which lacks
1 substrates associated with flowing waters and flows only in
2 direct response to precipitation in the immediate watershed or
3 in response to melting snowpack and which is always above the
4 local water table.
5 * * *
6 "Intermittent stream" shall mean a body of water flowing in a
7 channel or bed composed primarily of substrates associated with
8 flowing water, which, during periods of the year, is below the
9 local water table and obtains its flow from both surface runoff
10 and groundwater discharges.
11 * * *
12 "Perennial stream" shall mean a stream or part of a stream
13 that flows continuously during all of the calendar year as a
14 result of groundwater discharge or surface runoff. The term does
15 not include intermittent stream or ephemeral stream.
16 * * *
17 "Reclamation" shall mean concurrent backfilling and
18 contemporaneous restoration of the affected area whereby the
19 approved pit dimensions are not exceeded. The last coal removal
20 is followed by continuous backfilling until achievement of
21 approved contours and highwall elimination. Topsoil or other
22 plant growth medium is spread and seeded or planted no later
23 than the end of the first full normal period for favorable
24 planting after backfilling and grading. The full normal period
25 for favorable planting of permanent herbaceous species is
26 between April 1 and September 15. The full normal period for
27 woody species is between April 1 and May 20.
28 * * *
29 Section 2. Section 4(a)(2)(I), (c), (g) and (h) of the act,
30 amended October 10, 1980 (P.L.835, No.155) and October 12, 1984
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1 (P.L.916, No.181), are amended and the section is amended by
2 adding subsections to read:
3 Section 4. Mining Permit; Reclamation Plan; Bond.--(a)
4 Before any person shall hereafter proceed to mine minerals by
5 the surface mining method, he shall apply to the department, on
6 a form prepared and furnished by the department, for a permit
7 for each separate operation. The department is authorized to
8 charge and collect from persons a reasonable filing fee. Such
9 fee shall not exceed the cost of reviewing, administering and
10 enforcing such permit. As a part of each application for a
11 permit, the operator shall, unless modified or waived by the
12 department for cause, furnish the following:
13 * * *
14 (2) Reclamation Plan. A complete and detailed plan for the
15 reclamation of the land affected. Except as otherwise herein
16 provided, or unless a variance for cause is specially allowed by
17 the department as herein provided, each such plan shall include
18 the following:
19 * * *
20 I. In the case of surface coal mining, the application shall
21 also include a statement of the land use proposed for the
22 affected area after mining and reclamation are completed. The
23 department shall not approve any post-mining land use unless the
24 application demonstrates that the operation will restore the
25 land affected to a condition capable of supporting the uses it
26 was capable of supporting prior to any mining, or to any higher
27 or better uses. [No] The post-mining land use proposed shall be
28 agreed to in writing by the landowner. The land use to which the
29 landowner agrees shall be approved, except that no post-mining
30 land use or uses shall be approved unless the application
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1 demonstrates that the use or uses are reasonably likely to be
2 achieved, do not present any actual or potential threat to
3 public health or safety or to fish and wildlife or of water
4 diminution, interruption, contamination or pollution, are
5 consistent with applicable land use policies, plans and programs
6 and Federal, State or local law, and involve no unreasonable
7 delay in implementation. Should the landowner elect to use the
8 land for a purpose other than that approved in the reclamation
9 plan after reclamation is completed but prior to the final bond
10 release, the landowner shall be solely responsible for any
11 injury to the land and shall also be responsible for any repair
12 to or reclamation of the land which may be required. The
13 department shall release the final bond to the operator if the
14 landowner uses the land for a purpose other than approved in the
15 reclamation plan prior to final bond release, provided the
16 operator has completed reclamation as required by this act. In
17 the case of noncoal surface mining, the application shall
18 include such information concerning post-mining land use as may
19 be prescribed by regulations promulgated hereunder.
20 * * *
21 (c) Upon receipt of an application, the department shall
22 review the same and shall make such further inquiries,
23 inspections or examinations as may be necessary or desirable for
24 a proper evaluation thereof. [Should the department object to
25 any part of the proposal, it shall promptly notify the applicant
26 in writing of its objections, setting forth its reasons
27 therefor, and] The department shall, within sixty (60) days of
28 the close of the public comment period, notify the applicant in
29 writing of all deficiencies in the application. The department
30 shall afford the applicant a reasonable opportunity of not fewer
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1 than sixty (60) days to make [such] amendments or take such
2 other actions as may be required to [remove the objections.]
3 resolve the deficiencies. When an application is returned for
4 amendment, the public notice in a newspaper of general
5 circulation need not be repeated upon resubmission if the
6 application is resubmitted to the department within sixty (60)
7 days of the date of return. Should any person having an interest
8 which is or may be adversely affected by any action of the
9 department under this subsection, or by the failure of the
10 department to act upon an application for a permit, he may
11 proceed to lodge an appeal with the Environmental Hearing Board
12 in the manner provided by law, and from the adjudication of said
13 board he may further appeal as provided by Title 2 of the
14 Pennsylvania Consolidated Statutes (relating to administrative
15 law and procedure).
16 * * *
17 (g) Subject to the public notice requirements of subsection
18 (b), if the department is satisfied the reclamation covered by
19 the bond or portion thereof has been accomplished as required by
20 this act, it may, in the case of surface coal mining operations,
21 upon request by the permittee release in whole or in part the
22 bond or deposit according to the following schedule: (1) when
23 the operator has completed the backfilling, regrading and
24 drainage control of a bonded area in accordance with his
25 approved reclamation plan, the release of sixty per cent of the
26 bond for the applicable permit area, so long as provisions for
27 treatment of pollutional discharges, if any, have been made by
28 the operator; (2) when revegetation has been successfully
29 established on the affected area in accordance with the approved
30 reclamation plan, the department shall retain that amount of
19890S0807B0887 - 5 -
1 bond for the revegetated area which would be sufficient for the
2 cost to the Commonwealth of reestablishing revegetation. Such
3 retention of bond shall be for the duration of liability under
4 the bond as prescribed in subsection (d). No part of the bond
5 shall be released under this subsection so long as the lands to
6 which the release would be applicable are contributing suspended
7 solids to streamflow or runoff outside the permit area in excess
8 of the requirements of law or until soil productivity for prime
9 farmlands has returned to equivalent levels of yield as nonmined
10 land of the same soil type in the surrounding area under
11 equivalent management practices as determined from the soil
12 survey performed pursuant to subsection (a)(2)I. Where a
13 permanent impoundment is to be retained, that portion of bond
14 under this subsection may be released under this subsection so
15 long as provisions for sound future maintenance by the operator
16 or the landowner have been made with the department; (3) when
17 the operator has completed successfully all mining and
18 reclamation activities, and has made provisions with the
19 department for the sound future treatment of pollutional
20 discharges, the release of the remaining portion of the bond,
21 but not before the expiration of the period specified for
22 operator responsibility in subsection (d). In the case of
23 noncoal surface mining operations, in lieu of the schedule and
24 criteria for release of bonds provided for in this subsection,
25 the schedule and criteria for release of bonds shall be as set
26 forth in regulations promulgated hereunder. No bond shall be
27 fully released until all requirements of this act are fully met.
28 Upon release of all or part of the bond and collateral as herein
29 provided, the State Treasurer shall immediately return to the
30 operator the amount of cash or securities specified therein.
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1 (g.1) For operations conducted under permits issued after
2 July 31, 1982, the department shall establish by regulation
3 requirements for abatement of pollutional discharges and
4 alternative financial responsibility, including a program of
5 self-bonding and other programs as may be necessary to provide
6 for the future treatment of pollutional discharges.
7 (g.2) For operations conducted under permits originally or
8 first issued prior to July 31, 1982, which encountered drainage
9 from previous mining and were mined in accordance with the rules
10 and regulations of the department in effect at the time, the
11 bonds shall be released as provided for in subsection (g),
12 unless the department demonstrates that the mining activities of
13 the permittee have caused additional pollution. If the
14 department so demonstrates, the permittee shall be responsible
15 for such additional pollution pursuant to subsection (g.1).
16 (g.3) For purposes of subsections (g) and (g.1),
17 "pollutional discharge" shall mean a discharge entering the
18 waters of this Commonwealth and for which the department
19 demonstrates a violation of water quality standards resulting in
20 degradation of the receiving waters.
21 (h) If the operator fails or refuses to comply with the
22 requirements of the act in any respect for which liability has
23 been charged on the bond, the department shall declare such
24 portion of the bond forfeited, and shall certify the same to the
25 [Department of Justice] Attorney General, which shall proceed to
26 enforce and collect the amount of liability forfeited thereon,
27 and where the operator has deposited cash or securities as
28 collateral in lieu of a corporate surety, the department shall
29 declare such portion of said collateral forfeited, and shall
30 direct the State Treasurer to pay said funds into the Surface
19890S0807B0887 - 7 -
1 Mining Conservation and Reclamation Fund, or to proceed to sell
2 said securities to the extent forfeited and pay the proceeds
3 thereof into the Surface Mining Conservation and Reclamation
4 Fund. Should any corporate surety fail to promptly pay, in full,
5 a forfeited bond, it shall be disqualified from writing any
6 further surety bonds under this act: Provided, however, That the
7 corporate surety shall have the right to meet the reclamation
8 requirements of the act for which liability has been charged on
9 a forfeited bond pursuant to standards for reclamation
10 established by the department. Any operator aggrieved by reason
11 of forfeiting the bond or converting collateral, as herein
12 provided, shall have a right to contest such action and appeal
13 therefrom as herein provided.
14 * * *
15 Section 3. Section 18(f) and (g) of the act, added October
16 12, 1984 (P.L.916, No.181), are amended to read:
17 Section 18. Surface Mining Conservation and Reclamation
18 Fund; Payments to Clean Water Fund.--* * *
19 (f) (1) When [an] a licensed mine operator desires to
20 reclaim property on which the department has forfeited bonds for
21 failure to complete the reclamation plan or is granted a permit
22 on property contiguous to a property on which the department has
23 forfeited bonds for failure to complete the reclamation plan,
24 the operator or permittee shall be provided the opportunity to
25 make a proposal to complete the reclamation plan of the
26 forfeited bond area. The proposal shall contain estimated costs
27 and the necessary information upon which the department can
28 determine the cost effectiveness of the proposal. Upon receipt
29 of the proposal, the secretary may negotiate and enter into a
30 contract with the operator or permittee to complete the
19890S0807B0887 - 8 -
1 reclamation plan. A determination whether to negotiate shall be
2 made by the department within thirty (30) days of receipt of the
3 proposal; and contract negotiations shall begin within thirty
4 (30) days of the determination to negotiate.
5 (2) The department shall establish a remining and
6 reclamation incentive program, the purposes of which shall
7 include, but not be limited to, the following:
8 A. encouraging the reclamation of abandoned mined lands by
9 active surface coal mine operators;
10 B. encouraging the recovery of remaining coal resources on
11 abandoned mine lands and maximizing reclamation of such lands in
12 the process;
13 C. designating abandoned mine sites which are suitable for
14 remining and reclamation;
15 D. developing an operator qualification system;
16 E. providing for special authorizations, reduced fees,
17 bonding incentives and bonding pools, and technical assistance
18 for qualified operators;
19 F. entering into agreements providing for land
20 stabilization, erosion and sediment control and reclamation
21 through conservation treatment, which agreements may also
22 provide for use and placement of excess spoil and establish a
23 standard for successful revegetation which shall provide, as a
24 minimum, for the establishment of ground cover of living plants
25 not less than can be supported by the best available topsoil or
26 other suitable material in the reaffected area, shall not be
27 less than the ground cover existing before disturbance, and
28 shall be adequate to control erosion;
29 G. providing for removal of existing coal waste piles,
30 slurry ponds, impoundments, embankments and other areas
19890S0807B0887 - 9 -
1 containing such waste materials, and encouraging the enhanced
2 use of coal waste materials as an alternative energy fuel; and
3 H. encouraging local government participation in abandoned
4 mine land agreements.
5 (3) A. Notwithstanding any provision of law to the
6 contrary, the department may enter into no-cost reclamation
7 contracts in which the cost of reclamation is assumed by the
8 operator. Any licensed surface mine operator or coal mine
9 operator having no history of violations showing a lack of
10 ability or intention to comply may make a proposal to reclaim
11 abandoned mine land or to remove a coal refuse pile.
12 B. The removal of coal refuse shall not involve any
13 reprocessing of coal refuse or the return of coal refuse
14 material to the coal refuse disposal area from which the pile is
15 removed.
16 C. Where the extraction of coal is necessary to physically
17 accomplish the reclamation of the abandoned mine land, the
18 department may authorize extraction of the coal without a valid
19 surface mining permit in accordance with regulations promulgated
20 by the department.
21 (g) There is hereby created a Mining and Reclamation
22 Advisory Board to assist the secretary to expend the funds for
23 the purposes provided by this act and to advise the secretary on
24 all matters pertaining to mining and reclamation which shall
25 include, but not be limited to, experimental practices,
26 alternate methods of backfilling, selection of reclamation
27 projects, alternate reclamation methods, obligations for
28 preexisting pollution liability, alteration of reclamation
29 plans, reclamation fees and bonding rates and methods.
30 (1) The board shall be comprised of [three (3)] four (4)
19890S0807B0887 - 10 -
1 coal operators, two (2) of whom shall be licensed bituminous
2 surface mine operators and [one (1)] two (2) of whom shall be
3 [a] licensed anthracite surface mine [operator] operators; four
4 (4) public members from the Citizens Advisory Council, who shall
5 be appointed by the council; one (1) member shall be a
6 representative of a corporate surety which issues reclamation
7 bonds in Pennsylvania; two (2) members, one (1) from the
8 Anthracite and Bituminous Licensed Professional Engineers and
9 one (1) from the County Conservation Districts, who shall be
10 appointed by the State Conservation District Commission; four
11 (4) members of the General Assembly, two (2) from the Senate,
12 one (1) member from the majority party and one (1) member from
13 the minority party, who shall be appointed by the President pro
14 tempore, and two (2) from the House of Representatives, one (1)
15 from the majority party and one (1) from the minority party, who
16 shall be appointed by the Speaker of the House of
17 Representatives.
18 (2) The secretary shall [chair the Mining and Reclamation
19 Advisory Board and] appoint the members from the coal industry,
20 the member representing the corporate surety and the member from
21 the Anthracite and Bituminous Licensed Professional Engineers.
22 (3) All members shall be appointed for a term of two (2)
23 years, except that one-half of the initial members shall serve
24 for three (3) years. Board members shall not receive a salary,
25 but shall be reimbursed for all necessary expenses incurred in
26 the performance of their duties.
27 (4) [The board shall meet at times fixed by the secretary
28 but not less than once per year. The Mining and Reclamation
29 Advisory Board shall replace the Mining Advisory Committee and
30 any other committee construed to be advisory for matters
19890S0807B0887 - 11 -
1 herein.] All actions of the board shall be by majority vote. The
2 board shall meet upon the call of the secretary, but not less
3 than quarterly, to carry out its duties under this act. The
4 board shall select from among its members a chairman and such
5 other officers as it deems appropriate.
6 (5) The board shall prepare an annual report on its
7 activities and submit the report to the Senate Environmental
8 Resources and Energy Committee and the House Mines and Energy
9 Management Committee.
10 (6) The department shall consult with the board in the
11 formulation, drafting and presentation of all regulations of a
12 technical nature promulgated under this act. The board shall be
13 given a reasonable opportunity to review and comment on all
14 regulations of a technical nature prior to submission of such
15 regulations to the Environmental Quality Board for initial
16 consideration. The written report of the board shall be
17 presented to the Environmental Quality Board with any regulatory
18 proposal. The chairman of the board shall be invited to
19 participate in the presentation of all regulations of a
20 technical nature before the Environmental Quality Board to the
21 extent allowed by the procedures of the Environmental Quality
22 Board. Nothing in this subsection shall preclude any member of
23 the board from filing a petition for rulemaking with the
24 Environmental Quality Board in accordance with procedures
25 established by the Environmental Quality Board.
26 * * *
27 Section 4. This act shall take effect in 60 days.
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